September 3, 2015

Labor activists cheered the Democrat National Committee’s decision last week to make a $15 federal minimum wage an official part of the party platform. The decision is just the latest in a string of victories for workers, who have successfully pushed for the higher minimum wage in a number of cities, including Seattle, San Francisco, Los Angeles, and New York. But even as the fight for $15 has made headlines and drawn attention to the labor movement, there have been major breakthroughs on wonkier fronts. In Washington, the most significant pro-labor policies are the ones that have been enacted through executive authority and presidential appointments—and that’s really why the 2016 elections will matter so much for ordinary workers.

The wave of victories has turned Obama into a hero of the labor movement, taking the edge off the anger over his trade deal. “President Barack Obama may end up doing more for the struggling labor movement than any president in three decades,” Politico declared. “They are taking real steps to addressing stagnating wages by using executive authority and aggressively pursuing rules at the Department of Labor,” Bill Samuel, director of government affairs at the AFL-CIO, told me.

But these are likely to be pyrrhic victories if a Republican wins the presidency in 2016, given the rising anti-union sentiment in the GOP. Members of the NLRB are appointed to five-year terms and require Senate approval, and appointments have become increasingly politicized in recent decades. As a result, “a new president could have an NLRB who could easily reverse those decisions—the board tends to behave like a pendulum,” said Samuel. “A lot of this progress could be wiped out.”

Both supporters and critics agree that Obama’s NLRB has been gone out of its way to make it easier to unionize and to hold employers liable for labor abuses. Reversing those rulings would be the top priority for a board controlled by Republican appointees. “The first order of business is to do whatever can be done to modify and repeal new [union] election rules that went into effect in April—those are of extreme concern to management,” said attorney Peter Kirsanow, a Bush appointee to the NLRB. Republican appointees would also be likely to target the new franchise ruling, which could make it easier for workers at fast-food companies like McDonald’s to unionize. “There is no permanence to a decision like the one that was reached, which overcome 30 years of mostly Republican decisions,” said Ross Eisenbrey, vice-president of the progressive Economic Policy Institute.

A Republican president could also reverse course through direct executive action. In addition to issuing new rules on overtime pay and home care workers, the Obama administration has launched a major crackdown on employers who misclassify employees as independent contractors, denying them benefits, higher pay, and other worker protections. Hillary Clinton has already promised to continue the “misclassification” crackdown, but a Republican administration could roll back that effort simply by backing off enforcement of labor laws. “When Reagan cut the staffing of the agencies, the enforcement staff, it led to a Wild West of widespread wage theft,” said Eisenbrey. “They wouldn’t even have to repeal the laws—they would let employers know that no one is on the beat.”

On the flip side, Democrats have gotten increasingly vocal about supporting labor unions to combat inequality. Another Democratic president could not only continue upholding the Obama-era rules, but also expand enforcement to areas that have gotten less attention.

If Republicans are in full control of Congress and the White House, they could also make a legislative push to weaken unions and worker protections. Wisconsin Gov. Scott Walker, who first rose to national prominence by cracking down on public-sector unions in his state, has promised to pass a national “right to work” law if he’s elected president. There are other anti-union bills already in the GOP pipeline: Sen. Orrin Hatch has introduced legislation that would require secret ballot elections rather than worker-chosen elections or petitions to form a union, making it harder for workers to unionize.

But political polarization also makes dramatic legislative change unlikely, no matter who’s in the White House. Republicans have a very slim chance of winning a filibuster-proof majority in the Senate, so Democrats would likely be able to block any sweeping changes. “Labor law very rarely changes on statute—it’s always a tough lift through through legislative law,” said James Shrek, a research fellow at the conservative Heritage Foundation, noting that the last major legislative changes were passed in the 1970s. That’s why the biggest changes are likely to happen through the executive branch.

There will still be the usual checks to the next president’s executive authority. Senate Republicans were so determined to block Obama’s NLRB appointments that he used recess appointments to fill the board, which the Supreme Court ultimately deemed unconstitutional. That fight kept the NLRB in legal limbo for most of Obama’s presidency, which is why there’s been a flurry of activity late in his second term. Democrats could similarly try to filibuster GOP appointees to the labor board—and federal courts—if a Republican wins the presidency, and they’re still in the Senate minority. But Democrats may have already weakened their own ability to exert their minority rights: During the bitter fight over Obama’s nominations, Senate Democrats used the so-called “nuclear option” to eliminate the filibuster over judicial appointments.

Such wonky fights aren’t likely to make 2016 headlines as readily as a $15 minimum wage. But they get to the heart of why the next election will really matter for ordinary workers. “The more progress the [Obama] administration makes, the bigger the stakes,” said Samuel of the AFL-CIO.

Suzy Khimm is a journalist based in Washington, D.C., and a former staff writer for the New Republic, MSNBC, and The Washington Post.